Legal Standard of Care Part, 1.
Tingey Injury Law Firm
Medical-Legal Concepts Affecting CNM/CM Practice
Legal Standard of Care Part 1
Standard of care is a legal term, not a medical or midwifery one. When referring to the quality of care provided in a situation of healthcare, Standard of Care is the term of lawyers, not healthcare providers. It is not unusual to hear healthcare professionals speak to standards of care, when what they are actually referring to are standards of practice. When CNMs/CMs consider the quality of care provided in a certain situation, it is more accurate for them to refer to standards of practice, like evidence-based practice, or the expected practice behaviors outlined by the American College of Nurse-Midwives.
A jury of her peers. Library of Congress
Standards Which Only Apply In Litigation
When speaking of standards of care, this refers to standards which would apply in litigation, like a medical malpractice case. States may vary on the language used to describe standard of care. The legal standard for negligence is “what a reasonable and prudent, or sometimes, ordinary, midwife would do in the same or similar circumstances”. In legal cases, medical/midwifery negligence is measured by a standard that may include individual circumstances of care, such as practice setting, demographics, skill and education of the healthcare professional/midwife.
Some States define standard of care as the “degree of care and skill of the ‘average’ or ‘ordinary’ midwife, allowing for the knowledge and skill that is available to the nurse-midwife“. Another definition of standard of care may be “what the average CNM would customarily do in the same or similar practice setting”. These are examples of how various States may define negligent obstetric or midwifery care. The differences between the “customary” practice of an “average” CNM and the practice of a “reasonable and prudent” CNM become evident in the context of defending liability.[1]
Kelly Sikkema
Who Determines Standard of Care For Litigation?
Physicians, nurse-midwives, and other medical providers who might potentially become involved in a professional negligence case are, understandably, concerned that lay people i.e. patients, attorneys, juries, and the general public, will interpret “reasonable” or “prudent” care as ultimate, ideal or perfect care, which is unrealistic and impossible in each case.
Because of these concerns, some States have attempted clarification, describing the medical/midwifery standard as ordinary or average, or “what a reasonably competent and skilled CNM, with a similar background and in the same midwifery community, would have provided under the circumstances that led to the alleged negligence”.
Alexander Grey
Determination of Risk
Certified Nurse-Midwives need to be particularly aware of the risks involved with any maternity care or procedure provided to a patient. Despite a CNM’s best efforts, birth outcomes can never be assured or guaranteed. No one can promise the perfect baby or ideal birth. For these reasons, when complications arise or outcomes are not perfect, CNMs may need to defend against a patient’s conclusion that they received improper or unreasonable care.
Bad outcomes in the realm of maternity care and birth can be particularly tragic because they involve relatively young women and newborn babies. While complications of maternity care can be due to negligence by the CNM/CM, expectations regarding what is reasonable care may set up a situation where negligence is automatically assumed. Again, States are trying to set a standard of medical and midwifery care similar to the legal standard for negligence (coming up in future articles).
State Legislative Language
To clarify how State legislatures use different language to establish a medical/midwifery standard of care, I will begin by explaining my rules for comprehending legislative writing. First of all, in order to be an effective drafter of legislation, an individual must be able to think and write in the most obscure, opaque, and generally incomprehensible way. One must also cultivate a talent for constructing the longest sentences known in the universe. If you do not have a pounding headache after some light legislative reading, you did not understand it and should read it again.
One State’s definition of standard of care might be this: What a reasonable and prudent CNM would do in the same or similar circumstances. The ACNM practice standards are brilliantly crafted to apply in all circumstances of care. As an example, let us compare a CNM home birth and a CNM hospital birth. Starting with this, we have two different circumstances (settings). But consider these different only in the context of “physical” circumstances and the potential for what can happen in these settings. Regarding the necessity for resuscitating a newborn at home, CNMs/CMs are intensely educated and will establish a plan and have equipment in place for basic newborn resuscitation. In addition, plans for expedient ambulance transport will activated, if necessary, to a prepared and willing receiving hospital nearby. These are acceptable plans which conform to CNM standards of practice, but they have unique limitations.
In regard to attending a hospital birth, midwives have readily available neonatal nurse practitioners, neonatologists, and a neonatal intensive care unit at hand. Accept that CNM conduct in both of these scenarios is consistent with ACNM Standards of Practice.
Defining Standards of Practice
When defining standards of practice, it can be successfully argued that settings/circumstances may differ, but the ACNM Standards do not. Every standard competency and ethical consideration applies to CNM care, even in different settings. The standard for the home birth midwife is the same as for the CNM delivering in the best-equipped hospital in town. Nurse-midwifery care in the home, in itself, does not represent a breach in the CNM standard of practice. Circumstances, alone, cannot establish the competence/level of care provided. What will determine standard of care/practice will be the CNM’s conduct; including appropriate disclosure, rescue plans, preparation, and support in the circumstances. All are consistent with ACNM Standards of Practice.
An argument might be raised that home delivery is inherently more risky than in a modern hospital (although statistics have not borne this out). The professional conduct of the CNM/CM includes full disclosure to a patient/family regarding what can and cannot be done in a certain set of circumstances, and providing an informed analysis of risk, will be in total compliance with ACNM standards of practice.
Determining Reasonable Plan For Safe Delivery
Differing circumstances or settings for a birth should not matter in regard to CNM/CM care if the nurse-midwife adheres to reasonable plans for safety, standards of practice, core competencies, ethics, and attention to the essential documents of the ACNM. However, conducting a delivery in what would be considered unreasonable circumstances, such as a tree-house birth during a strong wind, might convince a midwifery expert witness to testify that a breach in the standard of practice had occurred.
Consider, also, that a higher level of care does not necessarily mean a higher standard of care/practice. Circumstances, potentially envisioned in State legislation, may be dependent on a couple’s decision regarding the amount of risk that they believe is acceptable. Important behavior for the CNM/CM, in any potential birth scenario, is to diligently inform her clients, explaining known or likely problems, how these will be handled in the circumstances, and carefully documenting her plan of care and analysis of relative safety.
There are never guarantees, in any setting, but thorough documentation that all reasonable efforts have been made to rule out/prepare for known or foreseeable risk and establishing a reasonable rescue plan (for home birth/birth center settings), will be consistent with standards of practice. Disclosure and informed consent documentation are protective for all individuals involved, regardless of birth setting.